Related Expert's Opinion

In the cosmetics and personal care industry, color often plays a dominant role, but until recently that role has been more ornamental, as in the color of an eyeshadow.Today, one color in particular is at the top of everyone's mind— GREEN—and not green eyeshadow, but the art of making a claim or representation that a product is "green" or "environmentally-friendly. "The number of beauty products on the market labeled "natural" or "organic" is on the rise, causing concern that such labels are not well-defined.

In response, the Federal Trade Commission recently introduced proposed revised guidelines, the "Green Guides," to provide guidance for advertisers in the use of certain terminology. The Green Guides were first introduced in 1992, and last updated in 1998. The FTC seeks to prevent deception and unfair practices in the marketplace, and the Green Guides indicate how the FTC may react to certain statements/claims should it perform an investigation and order corrective action.

Revamping of the Green Guides suggests that heightened attention will be paid to an area that has to this point been left largely under- (or even un-) regulated.So how can cosmetics companies tout environmentally friendly characteristics, or packaging, without running afoul of the Green Guides and other potential pitfalls and false advertising claims? There is not an easy answer to that question, but the following can be used as a guide.

1. Avoid the use of broad terminology, such as “green” and “eco-friendly.”These terms are too general, and substantiation is problematic.

2. Another term to stay away from is “degradable,” unless the product and packaging will take no more than one year to complexly decompose after customary disposal. Other than perhaps a very small percentage, there probably are no products/packaging that will qualify to make this statement.

3. As with all advertising claims, make sure there is substantiation and therefore a reasonable basis for your claim.Qualifications, explanation and other disclosures that relate to the claim should be sufficiently prominent.

4. Third party certifications do not insulate an advertiser from FTC scrutiny.Companies which have received certification from an organization such as the Natural Products Association (NPA) should still take care to clarify the basis for certification.

5.Use of “CFC-Free” or “no CFC’s”, even if your product does not contain CFCs, can be problematic if the product contains other ozone-depleting ingredient(s).Also, use of “ozone friendly” can be problematic if a hair gel otherwise contains volatile organic compounds (VOCs) which may contribute to ground-level ozone formation.

Following the Green Guides will also reduce the likelihood of a complaint from a competitor.Although such cases have not been prevalent, in 2009 Dr. Bronner’s Magic Soaps did file suit against several competing personal care brands for allegedly mislabeling products as “organic,” the type of general claim clearly discouraged by the Green Guides.As more cosmetics and personal care companies compete for market share in this booming sector, disputes like this are certain to increase unless care is taken to consult the Green Guides, and obtain trusted legal advice, before including environmental claims.

About the Author

Lori Meddings is a partner in the Intellectual Property Practice Group at Michael Best & Friedrich LLP.Ms. Meddings can be reached by phone at 414.271.6560, or by e-mail at lsmeddings@michaelbest.com.